[Federal Register Volume 72, Number 245 (Friday, December 21, 2007)]
[Notices]
[Pages 72886-72896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-6176]



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Part IV





Environmental Protection Agency





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Air Fresheners; TSCA Section 21 Petition; Notice

  Federal Register / Vol. 72, No. 245 / Friday, December 21, 2007 / 
Notices  

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPPT-2007-1016; FRL-8345-9]


Air Fresheners; TSCA Section 21 Petition

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: On September 20, 2007, the Sierra Club, the National Center 
for Healthy Housing, the Alliance for Healthy Homes, and the Natural 
Resources Defense Council (NRDC) petitioned EPA under section 21 of the 
Toxic Substances Control Act (TSCA) to: Call-in allegations of adverse 
reactions related to air freshener products recorded by manufacturers 
and processors pursuant to TSCA section 8(c) and 40 CFR part 717; adopt 
a rule pursuant to TSCA section 8(d) to require submittal of heath and 
safety studies related to air fresheners, including lab results of 
ingredients and health effects from respiratory exposures; adopt a rule 
pursuant to TSCA section 4 to require manufacturers to conduct acute 
and chronic studies to evaluate the impact of air fresheners on human 
health; and adopt a rule pursuant to TSCA section 6 to require that air 
fresheners be labeled to identify all of their ingredients. TSCA 
section 21 does not apply to the petitioners' request for a call-in 
under TSCA section 8(c), and, for the reasons set forth in this notice, 
EPA has denied the petitioners' remaining three requests.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby 
Lintner, Regulatory Coordinator, Environmental Assistance Division 
(7408M), Office of Pollution Prevention and Toxics, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: [email protected].
     For technical information contact: Robert Jones, Chemical Control 
Division (7405M), Office Pollution Prevention and Toxics, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 564-8161; e-mail address: jones.robert 
@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you manufacture, 
process, import, or distribute in commerce air fresheners or their 
ingredients. Potentially affected entities may include, but are not 
limited to:
     Chemical manufacturers (including importers) and 
processors (NAICS code 325), e.g., air and room freshener 
manufacturers.
     Other manufacturers (including importers) and processors 
(NAICS code 3399), e.g., manufacturers of potpourri.
     This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in this unit could also be 
affected. The North American Industrial Classification System (NAICS) 
codes have been provided to assist you and others in determining 
whether this action might apply to certain entities. To determine 
whether you or your business may be affected by this action, you should 
carefully examine the TSCA section 21 petition on air fresheners. If 
you have any questions regarding the applicability of this action to a 
particular entity, consult the technical person listed under FOR 
FURTHER INFORMATION CONTACT.

B. How Can I Get Copies of this Document and Other Related Information?

    1. Docket. EPA has established a docket for this action under 
docket identification (ID) number EPA-HQ-OPPT-2007-1016. All documents 
in the docket are listed in the docket's index available at http://www.regulations.gov. Although listed in the index, some information is 
not publicly available, e.g., Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, will be publicly 
available only in hard copy. Publicly available docket materials are 
available electronically at http://www.regulations.gov, or, if only 
available in hard copy, at the OPPT Docket. The OPPT Docket is located 
in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 
Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room 
hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding Federal holidays. The telephone number of the EPA/DC Public 
Reading Room is (202) 566-1744, and the telephone number for the OPPT 
Docket is (202) 566-0280. Docket visitors are required to show 
photographic identification, pass through a metal detector, and sign 
the EPA visitor log. All visitor bags are processed through an X-ray 
machine and subject to search. Visitors will be provided an EPA/DC 
badge that must be visible at all times in the building and returned 
upon departure.
     2. Electronic access. You may access this Federal Register 
document electronically through the EPA Internet under the ``Federal 
Register'' listings at http://www.epa.gov/fedrgstr.

II. Background

A. What is a TSCA Section 21 Petition?

    Section 21 of TSCA allows any person to petition EPA to initiate a 
rulemaking proceeding for the issuance, amendment, or repeal of a rule 
under TSCA section 4, 6, or 8 or an order under TSCA section 5(e) or 
6(b)(2). A TSCA section 21 petition must set forth the facts that are 
claimed to establish the necessity for the action requested. EPA is 
required to grant or deny the petition within 90 days of its filing. If 
EPA grants the petition, the Agency must promptly commence an 
appropriate proceeding. If EPA denies the petition, the Agency must 
publish its reasons for the denial in the Federal Register. A 
petitioner may commence a civil action in a U.S. district court to 
compel initiation of the requested rulemaking proceeding within 60 days 
of either a denial or the expiration of the 90 day period.

B. What Criteria Apply to a Decision on a TSCA Section 21 Petition?

    1. Legal standard regarding TSCA section 21 petitions. Section 
21(b)(1) of TSCA requires that the petition ``set forth the facts which 
it is claimed establish that it is necessary'' to issue the rule or 
order requested. 15 U.S.C. 2620(b)(1). Thus, TSCA section 21 implicitly 
incorporates the statutory standards that apply to the requested 
actions. In addition, TSCA section 21 establishes standards a court 
must use to decide whether to order EPA to initiate rulemaking in the 
event of a lawsuit filed by the petitioner after denial of a TSCA 
section 21 petition. 15 U.S.C. 2620(b)(4)(B). Accordingly, EPA has 
relied on the standards in TSCA section 21 and in the provisions under 
which actions have been requested to evaluate this petition.
    2. Legal standard regarding TSCA section 8(d) rules. Section 8(d) 
of TSCA authorizes EPA to require the submission of unpublished health 
and safety studies initiated or conducted by, or known to or reasonably 
ascertainable by, manufacturers, processors, and distributors of 
chemical substances or mixtures. Studies may be excluded ``if the 
Administrator finds that submission of lists of such studies are 
unnecessary to carry out the purposes of [TSCA].'' 15 U.S.C. 
2607(d)(1).

[[Page 72887]]

    Section 21(b)(4)(B) of TSCA provides the standard for judicial 
review should EPA deny a request for rulemaking under TSCA section 
8(d): ``If the petitioner demonstrates to the satisfaction of the court 
by a preponderance of the evidence that ...there is a reasonable basis 
to conclude that the issuance of such a rule ...is necessary to protect 
health or the environment against an unreasonable risk of injury,'' the 
court shall order the Administrator to initiate the requested action. 
15 U.S.C. 2620(b)(4)(B).
    3. Legal standard regarding TSCA section 4 rules. EPA must make 
several findings in order to issue a rule to require testing under TSCA 
section 4. In all cases, EPA must find that data and experience are 
insufficient to reasonably determine or predict the effects of a 
chemical or mixture on health or the environment and that testing of 
the chemical is necessary to develop the missing data. 15 U.S.C. 
2603(a)(1). In addition, EPA must find either that the chemical or 
mixture may present an unreasonable risk of injury or that the chemical 
is produced in substantial quantities and may either result in 
significant or substantial human exposure or result in substantial 
environmental release. Id.
    In the case of a mixture, EPA must also find that ``the effects 
which the mixture's manufacture, distribution in commerce, processing, 
use, or disposal or any combination of such activities may have on 
health or the environment may not be reasonably and more efficiently 
determined or predicted by testing the chemical substances which 
comprise the mixture.'' 15 U.S.C. 2603(a)(2).
    If EPA denies a petition for TSCA section 4 rulemaking and the 
petitioners challenge that decision, TSCA section 21 allows a court to 
order EPA to initiate rulemaking if the petitioner demonstrates to the 
satisfaction of the court by a preponderance of the evidence in a de 
novo proceeding that findings very similar to those described in this 
unit with respect to a chemical substance have been met. However, TSCA 
section 21 omits the finding that ``testing is necessary to develop the 
data'' from the findings that a petitioner must demonstrate in order 
for a court to require EPA to initiate TSCA section 4 rulemaking. 15 
U.S.C. 2620(b)(4)(B)(i). Nonetheless, EPA believes TSCA section 
21(b)(4) is best interpreted as incorporating this finding. The 
alternative would be to read the statute as empowering a court to 
require EPA to initiate a rulemaking even where the Agency could not 
make proposed findings consistent with TSCA section 4 or take final 
action on the rule. EPA's interpretation is supported by legislative 
history. House Conference Report 94-1679 at pp. 97-99 (1976).
    In addition, EPA believes TSCA section 21(b)(4) does not provide 
for judicial review of a petition to promulgate a test rule for 
mixtures. Section 21(b)(4)(B)(i) of TSCA specifies that the court's 
review pertains to application of the TSCA section 4 factors to 
chemical substances. Moreover, TSCA section 21(b)(4)(B)(i) does not 
contain the additional finding that TSCA section 4 requires for issuing 
a test rule for mixtures (that the effect may not be reasonably and 
more efficiently determined or predicted by testing the chemical 
components). Congress left the complex issues associated with the 
testing of mixtures to the Administrator's discretion.
    4. Legal standard regarding TSCA section 6 rules. In order to 
promulgate a rule under TSCA section 6, the Administrator must find 
that ``there is a reasonable basis to conclude that the manufacture, 
processing, distribution in commerce, use, or disposal of a chemical 
substance or mixture . . . presents or will present an unreasonable 
risk.'' 15 U.S.C. 2605(a). This finding cannot be made considering risk 
alone. In promulgating any rule under TSCA section 6(a), the statute 
requires that the Administrator consider:
     The effects of such substance or mixture on health and the 
magnitude of the exposure of human beings to such substance or mixture.
     The effects of such substance or mixture on the 
environment and the magnitude of the exposure of the environment to 
such substance or mixture.
     The benefits of such substance or mixture for various uses 
and the availability of substitutes for such uses.
     The reasonably ascertainable economic consequences of the 
rule, after consideration of the effect on the national economy, small 
business, technological innovation, the environment, and public health. 
15 U.S.C. 2605(c)(1).
    Furthermore, the control measure adopted is to be the ``least 
burdensome requirement'' that adequately protects against the 
unreasonable risk. 15 U.S.C. 2605(a).
    Section 21(b)(4)(B) of TSCA provides the standard for judicial 
review should EPA deny a request for rulemaking under TSCA section 
6(a): ``If the petitioner demonstrates to the satisfaction of the court 
by a preponderance of the evidence that ... there is a reasonable basis 
to conclude that the issuance of such a rule ... is necessary to 
protect health or the environment against an unreasonable risk of 
injury,'' the court shall order the Administrator to initiate the 
requested action. 15 U.S.C. 2620(b)(4)(B).

C. What Action is Requested Under this TSCA Section 21 Petition?

    On September 19, 2007, the Sierra Club, the National Center for 
Healthy Housing, the Alliance for Healthy Homes, and NRDC petitioned 
EPA to:
    1. Call-in allegations of adverse reactions related to air 
freshener products recorded by manufacturers and processors pursuant to 
TSCA section 8(c) and 40 CFR part 717.
    2. Adopt a rule pursuant to TSCA section 8(d) to require submittal 
of health and safety studies related to air fresheners, including lab 
results of ingredients and health effects from respiratory exposures.
    3. Adopt a rule pursuant to TSCA section 4 to require manufacturers 
to conduct acute and chronic studies to evaluate the impact of air 
fresheners on human health.
    4. Adopt a rule pursuant to TSCA section 6 to require that air 
fresheners be labeled to identify all of their ingredients (Ref. 1).
    The petition defined air fresheners as:

    ...a broad range of product types, from traditional sprays to 
outlet- and battery-operated plug-ins, solid gel dispensers, hanging 
car air fresheners and potpourri. Air fresheners can serve two 
purposes: odor control (which includes unscented air fresheners) and 
aesthetic scent. Some products may serve both purposes, and others 
may serve only one. Cleaning products that kill germs, clean 
surfaces and leave a pleasant fragrance are not included in these 
petitions.
(Ref. 1)

    The petitioners also simultaneously petitioned the Consumer Product 
Safety Commission (CPSC) under the Federal Hazardous Substances Act 
(FHSA) (15 U.S.C. 1261 et seq.) ``to undertake specific actions to 
assess fully the risk to the public from exposure to air fresheners and 
to take reasonable steps to reduce that risk'' (Ref. 1). In November 
2007, the CPSC declined to docket the petition for rulemaking, because 
it did not meet the CPSC's statutory or regulatory requirements (Ref. 
2). CPSC stated that it was rejecting the petition because the petition 
did not ``identify the specific toxic constituent(s) and their 
concentration(s) in the air fresheners, the mechanism of exposure and/
or uptake of each such constituent or the `substantial illness' that 
might result from customary or reasonably foreseeable handling or use 
of such air fresheners that contain each

[[Page 72888]]

of these substances.'' CPSC also found that the petition did not 
``provide[] sufficient information to establish that a rule is 
necessary.''

D. What Support Do the Petitioners Offer for These Requests?

    Petitioners are concerned about potential risks from air fresheners 
and believe EPA should take the requested actions to assess and reduce 
any such risks. The petition discusses at length three reports in 
support of these requests:
     The American Association of Poison Control Centers' 
(AAPCC) 2005 Annual Report (Ref. 3).
     An ``opinion'' issued in January 2006 by the European 
Commission's Scientific Committee on Health and Environmental Risks 
(SCHER) (Ref. 4) on a report issued in January 2005 by the Bureau 
Europ[eacute]en des Unions de Consommateurs (BEUC), which measured and 
assessed chemical emissions from 74 air fresheners sold in Europe (Ref. 
5).
     A report issued in September 2007 by NRDC on the presence 
of phthalate esters in air fresheners (Ref. 6).
    1. Association of Poison Control Centers (AAPCC) Report. In support 
of the assertion that air fresheners present ``a significant source of 
human exposure to a veritable cocktail of dangerous and potentially 
dangerous'' chemicals, the petition presents information drawn from the 
AAPCC 2005 Annual Report. EPA considered the AAPCC report and does not 
agree with the petitioners that the information in the report raises 
significant concerns about possible health effects of air fresheners.
    According to the petition (Ref. 1), the AAPCC reported the 
following ``exposures'' to air fresheners based on calls to local 
poison control centers in 2005: 14,094 people overall (including 11,800 
children younger than 6). Of the reported exposures, the petition 
indicates that 98% were unintentional, and 2,623 resulted in injuries 
(2,492 minor injuries; 125 moderate injuries; 5 major injuries; and 1 
death).
    These numbers, however, represent only a very small percentage 
(0.58%) of the total number of 2,424,180 exposures to all substances 
reported in the AAPCC's 2005 Annual Report (Ref. 3). This incidental 
percentage is the more striking considering the industry's assertion 
that 70% of U.S. homes use air fresheners (Ref. 7) and the petitioners' 
assertion that ``[a]lmost every American is exposed to air fresheners 
in some manner'' (Ref. 1). Moreover, according to the 2005 AAPCC 
report, only 32 (0.23%) of the 14,094 reported air freshener exposures 
involved an adverse reaction, which is defined by AAPCC as ``an adverse 
event occurring with normal, prescribed, labeled, or recommended use of 
the product, as opposed to overdose, misuse, or abuse'' (Ref. 3).
    Considering the widespread use of air fresheners, the number of 
reported exposure incidents for air fresheners is relatively small when 
compared to the reported exposure incidents for other product 
categories. In the AAPCC report, air fresheners are one of five 
subcategories of deodorizers, and deodorizers have among the lowest 
number of reported exposures and injuries among the 55 categories in 
the AAPCC report (Refs. 3 and 8). In the AAPCC report, deodorizers are 
not included in the list of 23 categories ``most frequently involved in 
human exposures'' (Refs. 3 and 8). Deodorizers are 20\th\ among 23 
categories for ``most frequently involved in pediatric exposures 
(children younger than 6 years),'' but deodorizers were involved in 
only 1.3% of the total number of such exposures (Ref. 3). (The 
percentages for the 21\st\ (asthma therapies), 22\nd\ (dietary 
supplements/herbals/homeopathic), and 23\rd\ (antidepressants) 
categories were 1.2%, 1.1%, and 1.1%, respectively, nearly the same as 
for deodorizers). Nearly 95% of the injuries resulting from air 
freshener exposures were minor, 4.8% were moderate, and only 0.2% (5) 
were major. Of the two deaths reported, one resulted from intentional 
misuse and the reason for the other was reported as ``unknown'' (Refs. 
3 and 8).
    The petitioners assert that these figures under-represent exposures 
because people may not recognize the relationship asserted by the 
petitioners between air freshener exposures and adverse effects (Ref. 
1). On the other hand, EPA recognizes that asthma attacks and other 
health effects may be incorrectly attributed by callers to air 
freshener exposures. EPA has no basis to draw conclusions based on the 
possibility of unreported exposures to air fresheners or any other 
products. It is also important to note that these exposure reports, 
which provide the basis for the AAPCC report, rarely, if ever, include 
information about the concentrations or durations of the reported 
exposures and, therefore, cannot be used to make any conclusions about 
actual exposures during use or long-term health risks (Ref. 9).
    2. NRDC Report. According to the petition, NRDC tested 14 air 
fresheners and found phthalate esters in 12 (Ref. 6). NRDC stated that 
none of these 12 air fresheners listed phthalate esters as ingredients 
on their labels. According to the petition, phthalate esters are 
associated with ``a number of reproductive health risks'' and with 
allergic symptoms and asthma. The petitioners also state that 
``California's Office of Environmental Health Hazard Assessment lists 
some phthalates (including some found in these air fresheners) as 
chemicals known to the state to cause reproductive toxicity under 
California's Proposition 65'' (Ref. 1).
    Phthalate esters are a broad category of chemicals with varying 
toxicological profiles. California Proposition 65 (the Safe Drinking 
Water and Toxic Enforcement Act of 1986) requires the State to publish 
a list of chemicals known to be carcinogens or developmental toxicants 
and requires businesses to provide public notice about any 
``significant'' amount of a listed chemical in their products by, among 
other methods, labeling a consumer product (http://www.oehha.ca.gov/prop65.html) (Ref. 11). Of the five phthalate esters on the Proposition 
65 list, only one (di-n-butyl phthalate (DBP)) was reported in the NRDC 
study as being detected in air fresheners. According to the U.S. 
Centers for Disease Control Third National Report on Human Exposure to 
Environmental Chemicals, many consumer products contain phthalate 
esters, including vinyl flooring, adhesives, detergents, lubricating 
oils, solvents, automotive plastics, plastic clothing (e.g., 
raincoats), personal-care products (e.g., soap, shampoo, deodorants, 
fragrances, hair spray, nail polish), medical pharmaceuticals, plastic 
bags, garden hoses, inflatable recreational toys, blood-storage bags, 
intravenous medical tubing, and children's toys (Ref. 10).
    The NRDC study tested for 15 phthalate esters (including 4 of the 5 
phthalate esters on the Proposition 65 list) and found one or more of 5 
phthalate esters (including 1 (DBP) on the Proposition 65 list) in 12 
of 14 air freshener products tested. The 5 phthalate esters were: Di-n-
butyl phthalate (DBP), CAS No. 84-74-2; diethyl phthalate (DEP), CAS 
No. 84-66-2; diisobutyl phthalate (DIBP), CAS No. 84-69-5; diisohexyl 
phthalate (DIHP), CAS No.146-50-9; and dimethyl phthalate (DMP), CAS 
No. 131-11-3 (Ref. 6).
    With the exception of DEP, the phthalate esters were detected at 
very low concentrations (less than 7 parts per million (ppm)), which 
might indicate their presence as an impurity or lab contaminant rather 
than as an intentional ingredient. DBP was the only phthalate ester on 
the California Proposition 65 list (where it is listed for

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developmental toxicity) detected in the air fresheners examined in the 
NRDC report. DBP was detected at very low concentrations in 5 samples: 
At concentrations less than 1 ppm in four samples and at a 
concentration of 4.5 ppm in one sample.
    DEP was detected in three samples at concentrations of 360 ppm, 
1,100 ppm, and 7,300 ppm; DEP was detected in six other samples at 
concentrations of 6.3 ppm or less (Ref. 6). DEP is known to be used as 
a solvent and vehicle in a wide variety of fragrance and cosmetic 
products at concentrations ranging from <0.1% to 11% (i.e., 1,000 to 
110,000 ppm) (Ref. 29), which could explain its detection at 
concentrations in the thousands of ppm in several air fresheners 
reported by NRDC. While higher than the very low levels of other 
detected phthalate esters, the levels of DEP in air fresheners 
identified in the NRDC Report are still quite low. In 2003, the 
European Union's (EU) Scientific Committee on Cosmetic Products and 
Non-Food Products Intended for Consumers (SCCNFP), a scientific 
advisory body to the European Commission (as is the EU's SCHER that is 
cited by the petitioners), concluded that the safety profile of DEP 
supports its use in European cosmetic products at ``current levels'' 
(Refs. 12 and 13).
    The petitioners also referenced several studies in footnotes within 
the petition and in a public comment that reported possible 
associations between general exposure to phthalate esters (i.e., not 
specifically from exposure to air fresheners) and potential adverse 
health effects in humans. The NRDC report did not measure nor estimate 
the potential exposures or risks that may result from the use of air 
fresheners in which phthalate esters have been detected and so does not 
provide a basis to assess such exposure or potential risk. There are 
numerous other potential sources of phthalate esters to which consumers 
may be exposed that could lead to potentially higher exposures than 
those that may result from use of air fresheners.
    In 2007, following release of a report by Greenpeace that reported 
concentrations of phthalate esters in perfumes (Ref. 14), the EU's 
Scientific Committee on Consumer Products (SCCP) issued an opinion on 
certain phthalate esters in cosmetic products (Ref. 15). The SCCP 
opinion addressed nine phthalate esters including four of the five 
phthalate esters detected in air freshener samples by NRDC. The 
magnitude of the phthalate ester concentrations reported in the 
Greenpeace report for perfumes are similar to those reported by NRDC. 
DIHP, detected by NRDC at a concentration of 2.1 ppm in one air 
freshener, was not included in the SCCP opinion. The SCCP concluded 
that: There was no need to update the SCCNFP opinion on the safe use of 
DEP in cosmetics; in view of the low concentrations of DIBP and DMP 
found in samples analyzed (38 and 2,982 ppm, respectively), there would 
be no quantifiable risk for the consumer; and that traces of DBP up to 
100 ppm do not indicate a risk to the health of the consumer. 
Similarly, the Cosmetic Ingredient Review Expert Panel concluded in 
2002/2003 that DBP, DMP, and DEP are safe for use in cosmetic products 
(including perfumes and hair sprays) ``in the present practices of use 
and concentrations'' (Ref. 29).
    EPA recently contracted with the National Academy of Sciences (NAS) 
to evaluate human health risks and the potential for conducting a 
cumulative risk assessment for phthalate esters (Ref. 16). (Project 
information is available at http://www8.nationalacademies.org/cp/projectview.aspx?key=48860). Specifically, EPA is eliciting external 
expert consultation to evaluate the issues related to cumulative hazard 
and dose-response assessment. The study panel will examine the 
strengths and limitations of a cumulative approach opposed to or in 
addition to an individual chemical approach for risk assessment of 
phthalates. EPA anticipates that the final product of this study panel 
will be a report discussing the issues identified by the panel, the 
ways in which any assessment may be approached, the strengths and 
limitations of any of the proposed approaches, and whether any 
additional research is needed. The project began in September 2007 and 
NAS is scheduled to submit a report in December 2008.
    In addition, EPA has developed five individual phthalate human 
health risk assessments (DEP, DMP, di(2-ethylhexyl)phthalate, dibutyl 
phthalate, and butyl benzyl phthalate) that are currently available on 
the Integrated Risk Information System (IRIS) database. The IRIS 
Summaries for these phthalates can be found at http://cfpub.epa.gov/ncea/iris/index.cfm?fuseaction=iris.showSubstanceList. The IRIS Program 
has also undertaken reassessments for di(2-ethylhexyl)phthalate, 
dibutyl phthalate, and butyl benzyl phthalate. The schedules for the 
reassessments of these phthalates are available on IRIS Track http://cfpub.epa.gov/ncea/iristrac/index.cfm).
    In sum, the NRDC report indicates that some phthalate esters are 
present in some air fresheners at generally low concentrations. This 
information is not surprising and does not provide a basis to suspect 
that the presence of the phthalate esters at the concentrations 
detected presents a significant public health risk. In addition, the 
NAS evaluation, which is expected to address phthalate esters more 
comprehensively, rather than in a very specific use such as air 
fresheners, will help inform any risk assessment or testing needs.
    3. BEUC and SCHER reports. The petition also relies on an opinion 
issued by SCHER in January 2006 about a report issued by the Bureau 
Europ[eacute]en des Unions de Consommateurs (BEUC) in January 2005 that 
measured and assessed chemical emissions from 74 air fresheners sold in 
Europe (Refs. 4 and 5).
    In order to understand these reports, some background information 
is necessary. BEUC is a European association of national consumer 
organizations. In November 2004, BEUC announced that a study it had 
commissioned had found that air fresheners emitted toxic air pollutants 
(Ref. 17). According to the report, the study tested 74 ``products 
belonging to different categories (incense, natural products, scented 
candles, aerosols, liquid diffusers, electric diffusers and gels),'' 
``simulate[ed] common use of such products by consumers,'' and 
measured, ``for each product, the concentration of Volatile Organic 
Compounds (VOCs) and aldehydes in the air after the use'' (Ref. 5). The 
BEUC report focused on emissions of ``total VOCs'' and several 
individual VOCs: Allergens, benzene, formaldehyde, terpenes, styrene, 
DEP, and toluene. The BEUC report found that the 74 products studied 
emitted over 350 different chemicals.
    A company that produces air fresheners filed a lawsuit in Belgium 
to compel BEUC to withdraw public statements indicating ``that normal 
usage of the fragrances generates serious health risks, and that these 
fragrances are not subjected to regulations in terms of product safety 
standards'' (Ref. 28). In March 2005, the court found that the BEUC 
study did not support statements that air fresheners were ``dangerous 
to people's health.'' The court ordered BEUC to withdraw statements 
that ``might or could create the impression that fragrances are unsafe 
with normal usage'' and issue a statement that its ``repeated public 
communications on the subject of air freshener safety'' were ``not 
appropriate as the currently known results from [the BEUC study] on 
which [BEUC] based [its] statements in effect do not justify the 
conclusion that air

[[Page 72890]]

fresheners are diffusing substances ... in concentrations that present 
a hazard to public health'' and ``may unjustly have generated the 
unwarranted impression that the air fresheners on sale in the 
Netherlands can result in health risk under normal usage.''
    SCHER was subsequently asked to consider whether the specific 
chemical emissions from air fresheners reported in the BEUC study 
represented a health risk to consumers and what further studies might 
be necessary to adequately assess the potential health risks from air 
fresheners. SCHER issued its assessment in January 2006 (Ref. 4). SCHER 
noted that ``Neither the composition of the tested products, nor the 
rationale for the selection of the individual substances studied are 
given in the BEUC report;'' that ``[t]he individual compounds in the 
reported results are, in most cases, well studied;'' and that ``[t]he 
results in the BEUC study may ... be regarded as realistic worst case 
values.'' SCHER noted that, with the exception of benzene emissions 
resulting from the burning of certain incense products, the air 
concentrations of the substances assessed in the BEUC report were below 
known limit values for adverse health effects and/or were within the 
range of typical indoor air concentrations.
    SCHER reached the general conclusion that current scientific 
knowledge on ``the use of air fresheners, emissions and resulting 
concentrations in indoor air'' was ``limited'' and that ``the 
[exposure] data on air fresheners available to the SCHER are 
insufficient for an overall risk evaluation for consumers.'' SCHER 
concluded that ``[m]ore data, on e.g. the use pattern of these 
products, are required to allow assessment of the actual exposure of 
the residents'' and that, in particular, ``the frequency of the used 
air freshener, the duration of exposure and the frequency of peak 
levels needs to be considered.''
    EPA conducted a literature review of sources of information 
relevant to human exposure to air freshener products (i.e., 
formulation, emission measurement, air monitoring, and modeling 
information) (Ref. 21). This review identified additional studies not 
reviewed in the BEUC and SCHER reports. Some of the same analytes 
reported in the BEUC report (e.g., terpenes and formaldehyde) were 
detected in these studies, usually at lower maximum concentrations than 
those reflected in the BEUC report.
    EPA then reviewed the BEUC and SCHER reports in light of the 
information gathered during the literature review (Ref. 18). EPA 
concluded, as did the SCHER report, that there were deficiencies 
related to the quality of the data in the BEUC report. EPA concluded 
that the information and findings in the BEUC report did not appear to 
satisfy EPA's Information Quality Guidelines (Ref. 19). EPA also 
concluded that uncertainty about how representative the BEUC results 
are for the U.S. air freshener market is a key limitation in their 
usefulness for estimating potential U.S. consumer exposures.
    The petitioners point out that BEUC found that ``for most products 
tested the emitted total VOC values exceeded 200 microgram/milligram 
cubed ([micro]g/m\3\), the proposed maximum limit value in indoor air 
in several countries...'' While total VOC does measure the presence of 
VOCs indoors, there is no validated evidence to indicate that this 
measure is a predictor of indoor air quality concerns or potential 
health effects. Total VOC does not indicate the impact of other 
pollutants present or building factors that may also impact indoor air 
quality and health. In addition, there is no standardized procedure for 
measuring total VOCs and, therefore, no ability to compare between 
reported measurements. Although under certain conditions total VOC 
measurements may be useful as a screening tool, EPA does not believe 
total VOC measurements should be used as an indicator of indoor air 
quality or health concerns.
    4. Epidemiological studies and other information. In addition to 
the three sources listed in Unit II.D., the petitioners submitted to 
EPA epidemiological studies as additional support (Refs. 22 and 23). 
Reference 23 was submitted as part of the petition. Reference 22 was 
submitted after the petition and, consequently, is not considered by 
EPA to be part of the petition. However, EPA reviewed both studies. The 
studies attempted to determine whether there was an association between 
asthma and either the use of common household cleaners or chemical 
hypersensitivity. EPA's review concluded that both studies, neither of 
which was specifically designed to evaluate possible health effects 
related to exposure to air fresheners, contained numerous design 
limitations and could not be used to support an association between 
asthma and the use of air fresheners (Ref. 20).
    Petitioners also present certain arguments about the risks and 
benefits of air fresheners. Petitioners assert that ``air fresheners 
provide no public health value'' (Ref. 1). Petitioners further assert 
that air fresheners may mask the presence of mold and other health 
threats (Ref 1). Petitioners have provided no basis for EPA to evaluate 
these assertions, although EPA agrees that, in general, air fresheners 
are not a solution for indoor air quality issues. In addition, public 
health value is not the only type of benefit cognizable under TSCA. As 
petitioners recognize, air fresheners are purchased in large 
quantities, and, as noted in comments submitted by industry, 70% of 
homes in the United States use air fresheners (Ref. 7); which together 
suggest that consumers place significant value on them. With regard to 
petitioners' second assertion, EPA sees no connection between the 
actions requested and any risk that might be presented by the masking 
of mold or similar conditions.
    5. Conclusion. The information provided by petitioners does not 
support the conclusion that air fresheners present a significant health 
risk, or a health risk that is a priority in relation to risks 
potentially posed by other chemicals or products. In addition to the 
limitations discussed in Unit II.D., it is clear that the information 
supplied by petitioners is only a sample of the information available 
on health risks potentially associated with air fresheners. Based on 
comments received during the comment period and independent inquiry by 
EPA (see Unit III.C.1.), there are a number of additional publicly 
available studies and analyses of the potential health effects from air 
fresheners and air freshener ingredients. Industry commenters assert 
that some of these studies demonstrate that air fresheners in general 
do not present a significant risk (Refs. 24 and 25). EPA expresses no 
view on this industry characterization, but EPA cannot judge whether 
air fresheners generally, or any particular air fresheners, present an 
unreasonable risk, or a significant risk at all, without further review 
of available information.

E. Other Considerations

    EPA has a number of high priority chemical assessment and risk 
management projects and actions already underway that are requiring a 
substantial amount of OPPT resources. EPA views many of these projects 
as being more broadly applicable, and as having greater potential to 
result in the understanding and reduction of possible chemical risks, 
than the actions suggested by the petitioners. These projects include, 
for example, the following:
    In August 2007, the President committed the United States to join 
Canada and Mexico in a collaborative effort under the Security and 
Prosperity Partnership (SPP) to rapidly and efficiently improve 
chemical security

[[Page 72891]]

and safety throughout North America. The U.S. contribution to this 
partnership is, by 2012, to assess and initiate needed actions on the 
approximately 9,000 chemicals manufactured in, or imported into, the 
United States in volumes greater than 25,000 pounds. These include 
3,000 ``high-production-volume'' (HPV) chemicals (produced or imported 
at 1 million lbs/year annually) and 6,000 ``medium-production-volume'' 
MPV chemicals (produced or imported between 25,000 and 1 million lbs/
year). EPA expects that many of the ingredients of air fresheners will 
be encompassed within these groups of chemicals. The North American 
collaboration also provides for the sharing of scientific information 
and technical understanding, best practices, and research on new 
approaches to chemical testing and assessment. The scope and pace of 
this commitment represents a significant commitment of Agency resources 
over the period of the next 5 years. Additional information on this 
commitment can be found at: http://www.epa.gov/chemrtk/index.htm.
    Another, chemical-specific, project involves conducting and 
integrating new studies into the ongoing risk assessment on 
perfluorooctanoic acid (PFOA) and managing the related 2010/15 PFOA 
Stewardship Program, in which companies have committed to reduce 
emissions and product content of PFOA and other perfluorinated 
compounds, many of which have been found in the blood of the general 
U.S. population. Additional information on this project can be found 
at: http://www.epa.gov/oppt/pfoa/index.htm.
    In addition, EPA has several efforts underway under the Design for 
the Environment (DfE) Program. DfE works in partnership with a broad 
range of stakeholders to reduce risk to people and the environment by 
preventing pollution. One example of special relevance to fragrances 
and air fresheners is DfE's work with formulators of chemical products 
to identify safer chemical alternatives for ingredients of concern and 
to recognize those formulators who develop safer chemical products 
through green chemistry. Cleaning products can contain a wide variety 
of ingredients including surfactants, solvents, builders, and 
fragrances. Fragrances are key ingredients in some cleaning products. 
To enable and further environmental stewardship in the fragrance 
industry, and to help fragrance houses identify safer ingredients for 
the formulation of fragrances in cleaning products, DfE is working with 
stakeholders from the fragrance industry, formulators of cleaning 
products, environmental groups, and other Agency representatives. The 
goal of this stakeholder effort is to define safer fragrance materials 
for cleaning products, and provide fragrance houses and cleaning 
product formulators with a marketplace for those ingredients. 
Additional information on the DfE program in general and the 
formulators project in particular is available at: http://www.cleangredients.org.

III. Disposition of Petition

    EPA has concluded that the petition does not set forth sufficient 
facts to support the petitioners' assertion that it is necessary to 
initiate the requested rulemakings under TSCA sections 4, 6, or 8(d). 
Furthermore, EPA has concluded that a TSCA section 8(c) data call-in is 
not a petitionable matter under TSCA section 21. A detailed explanation 
of EPA's determination follows.

A. TSCA Section 8(c) Request

    The petitioners requested that EPA ``call-in allegations of adverse 
reactions recorded by manufacturers and processors [of air fresheners] 
pursuant to TSCA section 8(c) and 40 CFR part 717 [EPA's TSCA section 
8(c) regulations].''
    Section 8(c) of TSCA provides that ``[a]ny person who manufactures, 
processes, or distributes in commerce any chemical substance or mixture 
shall maintain records of significant adverse reactions to health or 
the environment, as determined by the Administrator [of EPA] by rule, 
alleged to have been caused by the substance or mixture,'' and that, 
``[u]pon request of any duly designated representative of the 
Administrator, each person who is required to maintain records under 
[TSCA section 8(c)] shall permit the inspection of such records and 
shall submit copies of such records.'' 15 U.S.C. 2607(c). EPA issued 
regulations implementing TSCA section 8(c), 40 CFR part 717, which were 
published in the Federal Register issue of August 22, 1983 (48 FR 
38187). These regulations provide that EPA may require that records of 
allegations of significant adverse reactions be reported either by 
letter or by notice in the Federal Register: ``EPA will notify those 
responsible for reporting by letter or will announce any such 
requirements for submitting copies of records by a notice in the 
Federal Register.'' 40 CFR 717.17(b).
    The requested call-in is not a petitionable matter under TSCA 
section 21. Among the actions potentially available under TSCA section 
8, only rules are proper objects of a TSCA section 21 petition. 
Pursuant to TSCA section 8(c), and EPA's implementing regulations at 40 
CFR 717.17, allegations of adverse reactions are not called in by rule. 
In contrast, other provisions of TSCA--including part of TSCA section 
8(c)--require or authorize the Administrator to act by rule. Section 21 
of TSCA allows any person to petition ``to initiate a proceeding for 
the issuance, amendment, or repeal of a rule under section 2603, 2605, 
or 2607.'' 15 U.S.C. 2620(a). EPA interprets TSCA section 21 to apply 
only to the enumerated actions. EPA believes the Congress reasonably 
chose to extend TSCA section 21 only to the specific rules and orders 
identified under TSCA section 21. In general, rules are more broadly 
applicable and more significant regulatory actions than individual 
implementation actions, such as TSCA section 8(c) call-ins. While TSCA 
section 21 provides for petitions for 2 types of orders, these rest on 
findings related to potential health or environmental risks, or 
production and release of, or exposure to, a chemical or mixture, and 
each requires potentially significant action by the recipient of the 
order. Congress chose not to extend TSCA section 21 to other kinds of 
agency implementation actions.

B. Denial of TSCA Section 8(d) Request

    Petitioners requested that EPA promulgate a rule pursuant to TSCA 
section 8(d) to require submittal of heath and safety studies related 
to air fresheners, including lab results of ingredients and health 
effects from respiratory exposures. This request is denied. Petitioners 
have not set forth sufficient facts to establish that it is necessary 
to initiate the requested TSCA section 8(d) rulemaking.
    First, in order to grant petitioners' request, air fresheners would 
have to be treated as a category of mixtures, rather than an individual 
chemical or particular mixture, and based on the limited analyses 
undertaken in responding to the petition, EPA does not believe that it 
would be appropriate at this time to treat the vast array of air 
freshener products as a category. The issues associated with addressing 
air fresheners as a category are further discussed in Unit III.C.1. 
Second, petitioners have not provided sufficient facts or information 
to support their assertion that air fresheners present an unreasonable, 
or even a significant, risk. Finally, even if petitioners had 
demonstrated that air fresheners present an unreasonable risk, they 
have not demonstrated that the requested TSCA section 8(d) rule would 
be necessary or

[[Page 72892]]

an appropriate tool to protect human health against that risk.
    As described in Unit II.D., the information that the petitioners 
relied upon to support their request is not persuasive and is not 
adequate to support the assertion that air fresheners present a 
significant public health risk, much less an unreasonable risk.
    The cost of this TSCA section 8(d) rule would be substantial for 
both the industry and the Agency. Although such a rule would not 
require industry to perform new testing, the scope of studies covered 
by the requested rule would be very broad. It is not clear whether the 
``manufacturers and processors'' that would to be subject to the rule 
petitioners request are intended to include manufacturers and 
processors of air freshener ingredients as well as products. Such a 
rule would potentially cover a very large group of entities, products, 
and ingredients.
    In addition, this rulemaking would require substantial Agency 
resources to develop, and significant Agency resources would also be 
required to analyze submitted studies on air fresheners.
    Petitioners request EPA to use a TSCA section 8(d) rule to obtain 
ingredient information. While information on air freshener ingredients 
could be a useful starting point for assessing whether air fresheners 
present any significant health risk, TSCA section 8(d) does not provide 
an efficient or effective way to obtain ingredient information because 
a TSCA section 8(d) rule would only obtain the ingredient information 
that was part of a health or safety study. Section 8(d) of TSCA is not 
designed for, and is not an efficient or effective means of obtaining 
general or comprehensive ingredient information on air fresheners.
    As a second general type of information, petitioners request EPA to 
use a TSCA section 8(d) rule to obtain information on ``exposure of 
consumers to air fresheners,'' ``health effects of exposure to air 
fresheners,'' and ``toxicity, persistence, and other characteristics of 
air fresheners that affect health and/or the environment.'' EPA 
generally considers this type of information to be health and safety 
information, which could be obtained through a TSCA section 8(d) rule. 
However, air fresheners are mixtures of chemicals, not individual 
chemicals, and as such contain a large number and wide variety of 
different chemicals. As a result, the interpretation of individual air 
freshener study results could be very difficult. When assessing studies 
of mixtures it is frequently difficult to determine which chemical or 
combination of chemicals produced a given result or caused a given 
effect. Further, the likely compositional diversity of the tested air 
freshener formulations presents EPA with difficulties in assessing the 
significance of any such health and safety studies in relationship to 
the ingredients and concentrations that are commonly present in 
commercially available air fresheners. Moreover, since air freshener 
ingredients are likely to change over time, the value or significance 
of health and safety study information on particular air freshener 
formulations could be limited.
    EPA would want a better general understanding of air freshener 
ingredients before concluding that the broad rule requested by the 
petitioners is a necessary or efficient tool to address possible health 
effects associated with air fresheners. In addition, EPA currently does 
not view collection of TSCA section 8(d) information on air fresheners, 
or analysis of such information should EPA obtain it, as a high 
priority among the many chemical issues and activities that the Agency 
could potentially expend resources investigating, and the petitioners 
have not persuaded EPA otherwise.
    Accordingly, EPA concludes that the petitioners have not set forth 
sufficient facts to support their assertion (and information available 
to EPA does not otherwise indicate) that it is necessary or appropriate 
to issue the requested TSCA section 8(d) rule.

C. Denial of TSCA Section 4 Request

    Petitioners requested that EPA promulgate a rule under TSCA section 
4 to require ``acute and chronic studies that use appropriate exposure 
routes and that capture a diversity of life stages and health 
conditions, such as asthma, for large populations of mammals evaluating 
the impact of air fresheners on human health. These tests must consider 
the byproducts of a reaction of the air fresheners with ozone and 
analyze both exposure and sensitization'' (Ref. 1). This request is 
denied. Petitioners have not set forth sufficient facts to support 
their assertion that it is necessary to issue a TSCA section 4 rule, as 
required by TSCA section 21(b)(1).
    In addition to the request for a TSCA section 4 testing rule with 
respect to ``air fresheners'' as described in the petition, petitioners 
also presented additional requests, orally and in written comments. EPA 
does not consider these additional requests part of the TSCA section 21 
petition, but nonetheless does address the petitioners' suggested 
alternative approaches in this unit.
    1. TSCA section 4 request set forth in petition. Petitioners have 
not set forth sufficient facts to support their assertion that it is 
necessary to issue a TSCA section 4 rule for air fresheners.
    As a threshold matter, petitioners' request as articulated in the 
petition would entail treatment of ``air fresheners'' as a category of 
chemical substances or mixtures (almost certainly mixtures, since it is 
unlikely that any air freshener is composed of a single chemical 
substance). Petitioners present both their request and their support 
for the request in terms of ``air fresheners.'' For example, the 
petition states, ``air fresheners may pose a risk to public health'' 
and defines air fresheners broadly to include a ``broad range of 
product types,'' from sprays to ``plug-ins'' to potpourri. Thus, 
treatment of air fresheners as a category would be necessary to grant 
petitioners' request as articulated in the petition.
    EPA has broad discretion to determine whether to regulate by 
category under TSCA section 26(c). Beyond the language of TSCA section 
26(c), this discretion is evidenced by the fact that TSCA section 
21(b)(4)(B)(i) provides an opportunity for a de novo hearing with 
respect to petitions for testing of chemical substances, but not for 
categories of chemicals or mixtures. As with mixtures, Congress left 
the complex issues associated with regulation by category to the 
Administrator's discretion. Congress intended this authority to 
``facilitate the efficient and effective administration'' of TSCA. 
Senate Report No. 94-698 at p. 31.
    While a broad category might be appropriate under certain 
circumstances, based on the limited analyses undertaken by EPA in 
responding to the petition, EPA does not believe that treating air 
fresheners as a category for the purposes of a TSCA section 4 testing 
rule would be appropriate, efficient, or effective at this time given 
the large number and wide variety of air fresheners. There is a vast 
array of mixtures and physical forms within the meaning of air 
fresheners that the petitioners provide. The category is so broad and 
varied that similar treatment for each member of the category (i.e., 
testing of each member) would not be practical, efficient or effective. 
In addition, EPA is not able at this time, nor would it be able in the 
reasonably foreseeable future, to identify a standard or standards for 
development of certain test data, as required by TSCA section 4(b)(1), 
that would be appropriate to the category as a whole. Specifically, EPA 
is currently not aware of any standard test

[[Page 72893]]

method for testing respiratory sensitization in animals. Given limited 
information and the lack of applicable standards, a testing rule for 
the category air fresheners would take years and a very large 
expenditure of resources for EPA to develop, promulgate and implement. 
In addition, a requirement to conduct the wide array of testing 
requested by petitioners would be costly for industry. The 
implementation of such a requirement would entail multiple methods to 
test a wide variety of products for each of the identified endpoints. 
Moreover, even if EPA could identify or devise appropriate test 
standards for respiratory sensitization, it is not at all certain that 
testing of air fresheners for this effect or other acute and chronic 
effects would provide useful data relevant to determining whether air 
fresheners as a class, or any particular chemical substances or 
mixtures, present an unreasonable risk. As described in Unit III.B., 
the interpretation of air freshener study results would be problematic.
    Even if category treatment were appropriate, petitioners have not 
set forth sufficient facts and information to support the TSCA section 
4 findings for air fresheners.
    First, petitioners have not set forth facts sufficient to support 
the required finding for mixtures under TSCA section 4(a)(2): That the 
effects of air fresheners would not be ``reasonably and more 
efficiently determined or predicted by testing the chemical substances 
which comprise the mixture.'' 15 U.S.C. 2603(a)(2). EPA has broad 
discretion to make this finding, and EPA does not, at this time, 
believe this finding is warranted. (TSCA section 21(b)(4)(B)(i) 
provides an opportunity for a de novo hearing with respect to petitions 
for testing of individual chemical substances, but not for mixtures.) 
On the contrary, based on the limited analyses undertaken by EPA in 
responding to the petition, identifying individual substances used in 
air fresheners and proceeding with additional requirements only where 
appropriate with respect to particular substances would be the more 
reasonable and efficient approach and would allow the Agency to target 
both public and private resources towards developing useful data. Given 
more complete information on the chemical substances, EPA might 
conclude that testing of some air freshener mixtures or ingredients 
would be appropriate, but petitioners provide no basis to support this 
finding for the category of air fresheners as a whole.
    Petitioners assert that the testing of individual chemical 
substances alone could lead to gaps in data about synergistic effects 
or byproducts of air fresheners with ozone. While this is possible, 
petitioners have not provided any information to support the assertion 
nor at present does EPA have any basis to evaluate the assertion.
    In addition, petitioners have not set forth sufficient facts to 
support the other required TSCA section 4 findings as described in Unit 
II.B.2. For example, petitioners have not set forth sufficient facts 
for EPA to find that information available to the Administrator is 
insufficient to permit a reasoned evaluation of the health and 
environmental effects of air fresheners, or that testing of the air 
fresheners is necessary to develop missing data. 15 U.S.C. 2603. 
Petitioners have cited some information in an attempt to make these 
showings. For example, they point out that the EPA HPV Information 
System contains no repeat dose toxicity studies for respiratory 
exposure for the common fragrances reported in the BEUC study, and that 
more than 25 material safety data sheets (MSDSs) on air fresheners 
reviewed by the petitioners indicated no data are available for 
respiratory tract sensitization. This information could be suggestive 
of an insufficiency of data, but EPA cannot judge whether existing data 
or experience are insufficient to determine or predict the health 
effects of air fresheners and, even so, whether new testing would be 
necessary to develop such data without review of the additional 
available information. EPA's literature search indicates the existence 
of many published health and safety studies pertaining to the potential 
health effects of air fresheners or their ingredients (Ref. 24). 
Further, comments received on the petition indicate a large body of 
information created and maintained by the fragrance industry of which 
many are reported to be published in peer-reviewed scientific 
literature (Ref. 25).
    In light of the large body of additional available information 
which was not considered by petitioners, the petition does not support 
petitioners' claims regarding the insufficiency of existing data or 
that testing is necessary.
    For these reasons, the petitioners have not demonstrated that it is 
necessary or appropriate to issue the requested TSCA section 4 rule.
    2. Additional TSCA section 4 request articulated at meeting. EPA 
met with petitioners at their request on October 24, 2007, to discuss 
this petition. At that time, petitioners indicated that they intended 
their TSCA section 4 request to be for the testing of individual 
chemical substances used in air fresheners, not the air fresheners 
themselves (Ref. 26). A request to promulgate a TSCA section 4 rule 
with respect to either a category of chemical substances or individual 
chemical substances is significantly different from the request as 
articulated in the petition. Given the petitioners' obligation to 
articulate requests and set forth facts in their petition, EPA does not 
view this request as part of the petition. Nonetheless, EPA will 
address the alternative approaches identified by petitioners.
    First, EPA does not believe the designation of ``chemical 
substances used in air fresheners'' as a category of chemical 
substances for the purpose of the requested TSCA section 4 testing rule 
is appropriate, for reasons similar to those discussed in Unit III.C.1. 
This category is extremely large, undefined and indiscriminate. It 
appears that petitioners are requesting that EPA require testing for 
all of the chemical substances in all air fresheners (Ref. 27, p. 1). 
This would be a massive testing rule--significantly larger than any EPA 
has ever promulgated before. In addition to the sheer scope of the 
requested rule, similar treatment for each member of the category would 
not be practical, efficient or effective. The chemical substances in 
air fresheners have not been completely identified, and EPA has no 
reason to believe that by virtue of their use in air fresheners, these 
substances would be appropriate for treatment as a category for the 
purposes of a TSCA section 4 rule. In addition, petitioners have failed 
to set forth facts sufficient to support the TSCA section 4 findings as 
described in Unit II.B.3. with respect to the category of ``chemical 
substances used in air fresheners.'' The petitioners have not shown 
that the TSCA section 4 findings can be made for any chemical substance 
used in air fresheners. In addition, the category is likely to include 
chemicals that are benign, and/or are not produced in substantial 
quantities, and/or that have been extensively studied. Therefore, EPA 
does not believe that the requested testing of all chemical substances 
used in air fresheners should be applied.
    To the extent petitioners seek testing on only some of the chemical 
substances used in air fresheners, petitioners have not specified for 
which ingredients testing should be required nor have they provided 
information that would enable EPA to make the TSCA section 4 findings 
with respect to any individual chemical substances. Petitioners have 
identified a few chemical substances used in air fresheners, but they 
have not set forth facts with respect to any individual

[[Page 72894]]

substances to support the TSCA section 4 findings. For example, 
petitioners identify phthalate esters as a category of chemicals they 
are concerned about, but they have not shown that phthalate esters as a 
category, or any particular phthalate ester, meet the findings under 
TSCA section 4(a)(1). In addition, with respect to phthalate esters, 
the NAS evaluation regarding phthalate esters will help inform 
consideration of the sufficiency of the existing data and the need for 
any testing.
    3. Additional TSCA section 4 request made in comments. Through 
written comments on the petition dated November 5, 2007, petitioners 
presented an additional request for a rule requiring that ``[each of 
the] manufacturers [of air fresheners] specifically test at least one 
formulation for each category of air freshener that it sells'' (Ref. 
27). EPA again considers this additional request to be different from 
the request in the petition, and not part of the petition, but will 
address the alternative approach identified by petitioners.
    In order to require testing under TSCA section 4 on a particular 
mixture, the TSCA section 4 findings must be met with respect to the 
mixture to be tested. Petitioners' request is essentially for a rule 
requiring testing on individual mixtures, which they have identified as 
``formulations.'' While petitioners' comments imply that any 
``formulation'' might be a candidate for testing, they do not identify 
any particular mixture, nor have they provided a rationale for 
selecting which air fresheners should be tested.
    The petitioners have not set forth facts sufficient to support 
their assertion that a TSCA section 4 testing rule is necessary with 
respect to any particular mixture. It is possible that some air 
freshener ``formulations'' may meet the standards for testing as 
described in Unit II.B.2., but the petitioners have not identified such 
a mixture or provided any information toward these findings. For 
example, the petitioners have not set forth sufficient facts to make 
the necessary finding under TSCA section 4(a)(2) with respect to any 
mixture. As described in Unit II.B.3., EPA would have to find that the 
effects of the mixture ``may not be reasonably and more efficiently 
determined or predicted by testing the chemical substances which 
comprise the mixture.'' 15 U.S.C. 2603(a)(2). Here, as described in 
Unit III.C.1., EPA currently believes that identifying individual 
substances used in air fresheners and proceeding with additional 
requirements only where appropriate with respect to particular 
substances, would be the more reasonable and efficient approach. By way 
of further example, petitioners have also not set forth sufficient 
facts to show an insufficiency of data or necessity of testing for any 
particular formulations. Rather, ``air fresheners'' by the petitioners' 
own definition encompass a ``broad range of product types'' and varying 
formulations.
    To the extent the petitioners assert that testing of some subset of 
air fresheners could be required as a category of mixtures, this 
approach presents the same problems identified in Unit III.C.1. While 
the category described in the petitioners' comment is not quite as 
sweeping as the request in their petition, it is still a very expansive 
and ill-defined category of mixtures, and more information and analysis 
would be needed to determine if such an approach even merits further 
consideration.

D. Denial of Request to Issue TSCA Section 6 Labeling Rule

    The petitioners requested that EPA issue a rule under TSCA section 
6(a)(3) requiring air fresheners to be labeled to identify all 
ingredients. This request is denied. Petitioners have not set forth 
sufficient facts to establish that it is necessary to initiate the 
requested TSCA section 6(a) rulemaking.
    In support of their request, the petitioners assert that 
manufacturers and importers are already aware of the ingredients in 
their products, that their products are unnecessary, and that requiring 
the requested labeling would therefore impose an insignificant cost. 
The petitioners also assert that many of the chemicals present in air 
fresheners are toxic. However the petition does not provide a 
reasonable basis to conclude that air fresheners, or the chemicals used 
in air fresheners, present or will present an unreasonable risk of 
injury to health or the environment. In addition to the limitations of 
the three reports petitioners principally rely on, the petition does 
not provide a basis upon which to estimate the cost of the requested 
rulemaking. Furthermore, the petition does not provide a basis for 
finding that the action requested by petitioners would be necessary to 
protect adequately against any unreasonable risk, or that it is the 
least burdensome requirement that would adequately protect against such 
risk.
    As a threshold issue, as with their other requests, the petitioners 
do not demonstrate that any particular air freshener or air freshener 
ingredient presents or will present an unreasonable risk. The 
petitioners do briefly discuss some specific risk issues, but their 
statements are not sufficient to support any risk conclusions about any 
particular products or ingredients. For example, they cite the 
conclusions of the SCHER report that burning of some incense products 
available in Europe generated high benzene concentrations and that such 
``benzene emissions need attention to diminish the exposure'' (Ref. 4). 
EPA does not believe this information is relevant, because the 
definition of air freshener provided by the petitioners does not appear 
to include incense. The definition in the petition does not include any 
products involving combustion--a process that raises issues 
significantly different from those raised by non-combustion products. 
In addition, combustion--whether of incense, candles, or anything 
else--creates chemicals that are not present in the original article, 
and it does not appear to EPA that the listing of ingredients in the 
article would be an effective means of protecting against any risk that 
might result from combustion of the ingredients.
    Because the petitioners have not set forth sufficient facts with 
respect to any particular air freshener mixture or ingredient, EPA 
would have to treat air fresheners as a category of mixtures in order 
to grant the petitioners' request under TSCA section 6(a). This would 
result in a rule requiring labeling for a very broad product type, 
despite the fact that the petitioners have not shown that any specific 
air freshener, or air fresheners generally, present or will present an 
unreasonable risk. As described in Unit II.D., the information that the 
petitioners relied upon to support their request do not provide 
sufficient facts to support the assertion that air fresheners present 
or will present a significant risk, much less an unreasonable risk to 
human health or the environment. In addition, while not part of the 
petition, EPA also considered information provided by the petitioners 
and others during the public comment period. This information also did 
not provide a reasonable basis to conclude that air fresheners, or the 
chemicals in air fresheners, present or will present an unreasonable 
risk of injury to health or the environment.
    In addition to the limitations of the risk information provided by 
petitioners, petitioners did not provide adequate information to 
address the other components of the unreasonable risk standard. These 
relate not merely to the effects of the mixture (i.e., air freshener), 
or the chemicals comprising the mixture, but also to the benefits of 
the substance(s) for various uses and the availability of substitutes 
for such uses and to the reasonably ascertainable economic consequences 
of the control

[[Page 72895]]

mechanisms proposed to control the risk.
    These considerations are integral to the determination that there 
is a reasonable basis to conclude that a substance presents or will 
present an unreasonable risk, and the petitioners have not presented 
sufficient facts to address them. The petitioners asserted that the 
costs of their requested controls would be small and that the benefits 
of their controls would reduce risk, but provided no data or other 
information to substantiate either their estimates of cost or of the 
efficacy of their proposed control action. With respect to cost, 
contrary to petitioners' assertion, it seems likely to EPA that the 
cost of a rule requiring the listing of every ingredient of every air 
freshener would be substantial. The cost to the Agency of promulgating 
such a rule would also be very large. EPA would need to develop 
sufficient information to provide a reasonable basis to conclude that 
air fresheners as a category present or will present an unreasonable 
risk (it would need a record significantly more extensive than the 
information supplied by petitioner), and that product labeling is the 
least burdensome requirement that would adequately address that risk. 
The petitioners made no attempt to address this last requirement.
    With regard to the benefits of air fresheners, even assuming air 
fresheners provide no public health value, this is not the only kind of 
benefit cognizable under TSCA. As petitioners recognize, air fresheners 
are purchased in large quantities, which suggests that consumers place 
significant value on them.
    In sum, the petitioners have not set forth sufficient facts to 
establish that the requested rulemaking under TSCA section 6 is 
necessary, and EPA has denied the request.

IV. Comments Received

    EPA published a notice in the Federal Register issue October 23, 
2007 (72 FR 60016) (FRL-8154-5) announcing receipt of the petition and 
inviting public comment on or before November 7, 2007. EPA received 28 
timely comments, 4 of which were from the petitioners. One of the 
comments was received the day after the comment deadline due to a 
delivery problem on the part of the courier. EPA decided to consider 
this comment with the others.
    Eleven comments were from individuals who supported the petition. 
Several were allergy or asthma sufferers who felt that air fresheners 
aggravate their health problems. Several indicated a belief that 
manufacturers are not adequately testing their products and were 
especially concerned about children and air freshener misuse.
    Five comments were from health, environmental, or animal welfare 
non-profit organizations (Toxics Information Project, Environmental 
Health Coalition of Western Massachusetts, People for the Ethical 
Treatment of Animals (PETA), Ecological Health Organization (ECHO), and 
the American Lung Association of New England). Four of the five 
supported the petition, while the fifth, PETA, supported portions of 
the petition in principle, while opposing the portion calling for 
testing on large numbers of animals. PETA criticized some of the 
information that the petitioners cited in support of their petition, 
and argued that additional animal testing is not necessary and would 
not provide useful information on the effects of air fresheners on 
human health.
    Eight comments were received from air freshener manufacturing 
companies named in the petition and from trade organizations 
representing manufacturers of fragrance and fragrance-related products. 
(Reckitt Benckiser, Soap and Detergent Association, Grocery 
Manufacturers/Food Products Association, Fragrance Materials 
Association of the United States, Consumer Specialty Products 
Association, Dial Corporation, American Chemistry Council Phthalate 
Esters Panel, and Blythe, Inc.). All of these companies and 
organizations opposed EPA granting any part of the petition. The 
American Chemistry Council Phthalate Esters Panel and the Fragrance 
Materials Association of the United States (FMA) comments focused on 
the safety of several phthalate esters and the remainder of the 
commenters focused on air fresheners and fragrances generally.
    The Consumer Specialty Products Association (CSPA) comments are 
representative of the industry comments, and almost all of the other 
industry commenters specifically endorsed CSPA's comment submission. 
The CSPA comment argued that the petition should be denied because:
    1. There is inadequate evidence that air fresheners cause 
significant adverse reactions.
    2. Sufficient air freshener safety data are already available to 
EPA.
    3. The fragrance industry is already engaged in safety testing.
    4. Labeling requirements are unjustified and duplicative of FHSA.
CSPA's comments asserted that the fragrance industry is adequately 
self-regulating through an industry research and testing organization, 
Research Institute for Fragrance Materials, and an industry standards-
setting organization, International Fragrance Association. The comment 
included documents explaining the role of these organizations in the 
evaluation of ingredient safety by the fragrance industry. CSPA 
comments (and those from the two companies) explained the product 
stewardship programs used by Reckitt Benckiser and SC Johnson. CSPA's 
comments included their disagreements with and criticisms of the 
studies and data that petitioners used to support their position, and 
supplied additional studies that CSPA argued demonstrate the safety of 
fragrances and/or air fresheners.
    The petitioners submitted four more comments, including two 
epidemiological studies: One on household cleaning sprays and adult 
asthma and one on prenatal phthalate ester exposure. Petitioners also 
submitted a press release about a National Institutes of Health (NIH) 
study concluding that exposure to 1,4-dichlorobenzene, a VOC, used in 
household cleaning products, may cause reductions in lung function. 
Finally, petitioners submitted a comment clarifying two terms used in 
their petition, and further defining the type and scale of testing they 
are petitioning for under TSCA section 4. Given the petitioners' 
obligation to clearly articulate requests and set forth facts in their 
original petition and the short span of time within which EPA must 
respond to the petition as written, EPA does not view the 
clarifications and scope modifications subsequently submitted in 
petitioner's comments as components of the petition. Nevertheless, EPA 
has considered and addressed petitioners' comments, as detailed in Unit 
III.

V. References

    1. Sierra Club, Alliance for Healthy Homes, National Center for 
Healthy Housing and Natural Resources Defense Council. Letter from Ed 
Hopkins, Sierra Club; Robert Zdnek, Alliance for Healthy Homes; Rebecca 
Morley, National Center for Healthy Housing; and Mae C Wu, Natural 
Resources Defense Council to Stephen Johnson, Administrator, 
Environmental Protection Agency and Commissioner Thomas Moore, U.S. 
Consumer Product Safety Commission. Re: Citizen Petition to EPA and 
CPSC Regarding Air Fresheners. September 19, 2007.
    2. CPSC. Letter from Lowell F. Martin, Acting General Counsel, 
Office of the General Counsel, U.S. Consumer Product Safety Commission, 
to Mr. Ed Hopkins, Director, Environmental Quality Program, Sierra 
Club; Ms. Rebecca Morley, National Center for

[[Page 72896]]

Health Housing; Mr. Robert Zdenek, Alliance for Healthy Homes, and Mae 
C. Wu, Natural Resources Defense Council. November 23, 2007.
    3. Lai, M.W.; Klein-Schwartz, W.; Rodgers, G. C.; Abrams, J. Y.; 
Haber, D. A.; Bronstein, A. C.; and Wruk, K. M. 2006. 2005 Annual 
Report of the American Association of Poison Control Centers' National 
Poisoning and Exposure Database. Clinical Toxicology. 44:803-932.
    4. European Commission, Scientific Committee on Health and 
Environmental Risks (SCHER). Opinion on the Report: ``Emission of 
chemicals by air fresheners: Tests on 74 consumer products sold in 
Europe'' (BEUC report January 2005). January 27, 2006.
    5. Bureau Europ[eacute]en des Unions de Consommateurs (BEUC). The 
European Consumers' Organization. Emission of chemicals by air 
fresheners: Tests on 74 consumer products sold in Europe. 54 pp. 
January 2005.
    6. Cohen, A. Janssen, S. and Solomon, G. ``Clearing the Air: Hidden 
Hazards of Air Fresheners.'' Natural Resources Defense Council. 
September 2007.
    7. Reckitt Benckiser, Inc. Letter from Eileen J. Moyer, Director of 
Regulatory Relations, to Document Control Office, Office of Pollution 
Prevention and Toxics (OPPT), EPA. Docket ID number EPA-HQ-OPPT-2007-
1016-0018.1. November 6, 2007.
    8. EPA. Memorandum from Dirk F. Young, Environmental Engineer, 
Exposure Assessment Branch, Economics, Exposure, and Technology 
Division, to Robert Jones, Biologist, Chemical Information and Testing 
Branch, Chemical Control Division. Subject: Review of 2005 AAPCC on Air 
Fresheners. November 18, 2007.
    9. EPA. E-mail communication from Tala Henry, Toxicologist, Risk 
Assessment Division, to Andrea Pfahles-Hutchens, Epidemiologist, Risk 
Assessment Division with E-mail communication response from Andrea 
Pfahles-Hutchens to Tala Henry. Re: Poison control reports. November 5 
and 6, 2007.
    10. CDC, HHS. Third National Report on Human Exposure to 
Environmental Chemicals. National Center for Environmental Health, NCEH 
Pub. No. 05-0570. July 2005. Available on-line at: http:// 
www.jhsph.edu/ephtcenter/Third%20Report.pdf.
    11. State of California. Proposition 65 List of Chemicals. 
September 27, 2007. Available on-line at: http://www.oehha.ca.gov/prop65.html.
    12. SCCNFP. The Scientific Committee on Cosmetic Products and Non-
Food Products Intended for Consumers. Opinion Concerning Diethyl 
Phthalate. December 9, 2003.
    13. SCCNFP. The Scientific Committee on Cosmetic Products and Non-
Food Products Intended for Consumers. Opinion Concerning Diethyl 
Phthalate. June 4, 2002.
    14. Greenpeace. Perfume: An Investigation of Chemicals in 36 Eaux 
de Toilette and Eaux de Parfum. Greenpeace International. 16 pp. 
February 2005.
    15. SCCP. Scientific Committee on Consumer Products. Opinion on 
Phthalates in Cosmetic Products. March 21, 2007.
    16. NAS. The National Academies. Project Information: Health Risks 
of Phthalates. 2007 Available online at: http://www8.nationalacademies.org/cp/projectview.aspx?key=48860.
    17. Europe Information Service. Product Safety: BEUC Report Claims 
Air Fresheners are ``Risk to Health.'' Europe Environment. February 18, 
2005.
    18. EPA. Memorandum from Conrad Flessner, Jr., Biologist, Exposure 
Assessment Branch, Economics, Exposure, and Technology Division, to 
Robert Jones, Biologist, Chemical Information and Testing Branch, 
Chemical Control Division. Re: Exposure Information Review of the 
Scientific Committee on Health and Environmental Risks (SCHER) Report 
on Air Fresheners (December 13, 2007).
    19. A Summary of General Assessment Factors for Evaluating the 
Quality of Scientific and Technical Information, U.S. EPA, EPA 100/B-
03/001 (June 2003).
    20. EPA. Memorandum from Andrea Pfahles-Hutchens, Epidemiologist, 
Existing Chemicals Assessment Branch, Risk Assessment Division, to 
Robert Jones, Project Manager, Chemical Information and Testing Branch, 
Chemical Control Division. Subject: Review of Epidemiology Studies for 
TSCA Section 21 Petition. November 27, 2007.
    21. EPA. Screening Review of Literature for Air Freshener Exposure 
Information. Submitted by Versar Inc., to U.S. Environmental Protection 
Agency, Office of Pollution Prevention and Toxics. EPA Contract No. EP-
W-04-035. November 20, 2007.
    22. Zock, J-P; Plana, E; Jarvis, D.;, Anto, J. M.; Kromhout, H.; 
Kennedy, S.M.; Kunzli, N.; Villani, S.; Olivieri, M.; Toren, K.; Radon, 
K.; Sunyer, J.;, Dahlman-Hoglund, A.; Norback, D., and Dogevinas, M. 
2007. The Use of Household Cleaning Sprays and Adult Asthma: An 
International Longitudinal Study. American Journal of Respiratory and 
Critical Care Medicine. 176: 735-741.
    23. Caress, S. M. and Steinemann, A. C. 2005. National Prevalence 
of Asthma and Chemical Hypersensitivity: An Examination of Potential 
Overlap. Journal of Occupational and Environmental Medicine. 47:518-
522.
    24. EPA. E-mail communication with sample search results from 
Randall Brinkhuis to Greg Schweer. Subject: Search strategy and results 
for TSCA section 21 petition on air fresheners. December 3, 2007.
    25. CSPA. Consumer Specialty Products Association. Letter with 
enclosure from Robert A. Matthews, McKenna Long and Aldridge, LLP, to 
Document Control Office, Office of Pollution Prevention and Toxics 
(OPPT), EPA. Docket ID number EPA-HQ-OPPT-2007-1016-0029.1. November 7, 
2007.
    26. EPA. Minutes of meeting held October 19, 2007, between EPA and 
petitioners. Re: TSCA section 21 petitioners on air fresheners. October 
19, 2007.
    27. NRDC. Letter with attachment from Mae C. Wu, Natural Resources 
Defense Council and Ed Hopkins, Sierra Club on behalf of petitioners. 
Re: Docket ID number EPA-HQ-OPPT-1016, to Document Control Office, 
Office of Pollution Prevention and Toxics (OPPT), EPA. Docket ID number 
EPA-HQ-OPPT-2007-1016-0013.1. November 5, 2007.
    28. Sara Lee B.V. v. BEUC, KG 05/64 (March 8, 2005).
    29. Cosmetic Ingredients Review (CIR) Expert Panel, 2005. Annual 
Review of Cosmetic Ingredient Safety Assessments--2002/2003. 
International Journal of Toxicology. 24 (Supp. 1); 1-102.
    30. CEPA. California Environmental Protection Agency, Office of 
Environmental Health Hazard Assessment, Reproductive and Cancer Hazard 
Assessment Branch. 2007. Proposition 65 Safe Harbor Levels: No 
Significant Risk Levels for Carcinogens and Maximum Allowable Dose 
Levels for Chemicals Causing Reproductive Toxicity. October 2007.

List of Subjects

    Environmental protection, Air fresheners, Phthalates, Volatile 
Organic Compounds (VOCs).


    Dated: December 18, 2007.
James B. Gulliford,
Assistant Administrator, Office of Prevention, Pesticides and Toxic 
Substances.
[FR Doc. 07-6176 Filed 12-19-07; 11:51 am]
BILLING CODE 6560-50-S